WHITE v. SOLOMON & SOLOMON, P.C. et al

Filing 6

OPINION. Signed by Judge Claire C. Cecchi on 5/28/13. (DD, )

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
CONSTANCE WHITE,

Civil Action No.: 12-5666 (CCC)

Plaintiff,
OPINION
V.

SOLOMON AND SOLOMON, P.C. ET AL
Defendants.
CECCU!, District Judge.
I.

INTRODUCTION

This matter comes before the Court on the motion of Solomon & Solomon, P.C.
(“Defendant”) to dismiss the Complaint of Constance White (“Plaintiff’) pursuant to Federal
Rule of Civil Procedure 12(b)(6). The Court decides this matter without oral argument pursuant
to Rule 78 of the Federal Rules of Civil Procedure. Based on the reasons that follow,
Defendant’s motion to dismiss is granted without prejudice.’ Plaintiff is granted fourteen (14)
days in which to file an Amended Complaint that cures the pleading deficiencies discussed
below.
II.

BACKGROUND

Plaintiff alleges that sometime prior to July 17, 2012, Defendant contacted Plaintiff to
obtain payment for an alleged consumer debt. (Compi., ¶J 6, 8.) While communicating with
‘The Court considers any arguments not presented by the parties to be waived,
Brenner v.
Local 514. United Bhd. of Carpenters & Joiners, 927 F.2d 1283, 1298 (3d Cir. 1991) (“It is well
established that failure to raise an issue in the district court constitutes a waiver of the
argument.”).

Plaintiff, Defendant allegedly threatened to “garnish” Plaintiffs wages and her son’s wages.
(CompL,

¶ 9.)

As a result, Plaintiff claims that she suffered emotional distress, (Compl.,

¶

11.)

On September 11, 2012, Plaintiff filed suit alleging that Defendant violated the Fair Debt
Collective Practice Act (“FDCPA”)

§

1692f,

§

1692e(l0),

§

1692e(2)(B), and

§

1692e(5) by

“using unfair or unconscionable means in connection with the collection of an alleged debt[,]
using false, deceptive, or misleading representation or means in connection with the collection of
Plaintiffs alleged debt{.]

.

.

.

falsely representing the services rendered or compensation which

may be lawfully received by the Defendant for the collection of the alleged debt[, andj.
threatening to take action that it did not intend to take.” (Compi.,

¶

13.) Defendant filed its

motion to dismiss on October 3, 20i2.
IlL

LEGAL STANDARD

For a complaint to survive dismissal pursuant to Federal Rule of Civil Procedure
l2(b)(6), it “must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that
is plausible on its face.” Ashcroft v. Iqbai, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007)). In evaluating the sufficiency of a complaint, the Court
must accept all well-pleaded factual allegations in the complaint as true and draw all reasonable
inferences in favor of the non-moving party. See Phillips v. Cnty. of Allegheny, 515 F.3d 224,
231 (3d Cir. 2008). “Factual allegations must be enough to raise a right to relief above the
speculative level.”

550 U.S. at 555. Furthermore, “[a] pleading that offers ‘labels and

conclusions’ or ‘a formulaic recitation of the elements of a cause of action will not do.’ Nor does
a Complaint suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.”
lqbal, 556 U.S. at 678.

2

IV.

DISCUSSION
As stated above, Plaintiff claims that Defendant violated several provisions of the

FDCPA. Defendant argues that Plaintiffs Complaint should be dismissed because she failed to
provide information to identify dates, times, and reasons for the alleged FDCPA violations

—

i.e.

that Plaintiffs Complaint does nothing more than restate thern stato language without any

further factual enhancement. (Def. Mot.) Plaintiff opposes and argues that the Complaint
comports with the “notice” pleading standard.
Specifically, Plaintiff alleges that sometime prior to July 17, 2012 Defendant began
contacting Plaintiff for payment of an alleged consumer debt. (Compi.,
¶J 6, 8.) Plaintiff also
claims that Defendant threatened to “garnish” not only Plaintiffs wages, but also her son’s
wages. (Compl., ¶ 9.) Plaintiffs Complaint states that Defendant’s “illegal[,J abusive
communications.

.

.

were the direct and proximate cause of severe emotional distress on the part

of Plaintiff.” (Compi., ¶ 11.) Finally, Plaintiffs Complaint recites the statutory language of the
FDCPA

§

l692f,

§

l692e(l),

§

1692e(2)(B) and

§

l692e(5), and concludes that Defendant

violated these provisions.
The Court holds that Plaintiff has not pleaded sufficient facts showing a violation of the
FDCPA. See Herrerav. Client Servs,, No. 12-3491, 2012 U.S. Dist. LEXIS 112637, at *5
(D.N.J. Aug. 9, 2012) (“The allegations made by the Complaint fall short of setting forth
sufficient facts to state a plausible violation of [the FDCPAJ”). For example, in Lelina v. 1 st 2nd
Mortgage Co. of NJ, No. 11-5517, 2012 U.S. Dist. LEXIS 105821, at *20 (D.N.J. July 30. 2012),
the plaintiffs alleged, jmcr alia, a violation of the FDCPA. The Court granted the defendant’s
motion to dismiss, explaining that

“Plaintiffs’ Complaint is almost entirely a recitation of legal conclusions closely
mirroring the language of the statutes Defendants are claimed to have violated.
Indeed, the Complaint does more to inform this Court of the state of the law than
it does to inform the Court of the facts upon which Plaintiffs’ claims are based.
Such pleading leaves this Court unable to discern the appropriate causes of action
for which Defendants might plausibly be held accountable. Moreover, the Court
is left with the impression that either Plaintiffs are unable to identify the true
nature of the causes of action they allege, or that Plaintiffs allege that Defendants
have violated each statute in virtually every way conceivable. Plaintiffs must
provide some grounds upon which this Court may assess the sufficiency of each
of the claims asserted.
.

.“

Id. See also Gutierrez v. TD Bank, No. 11-5533, 2012 U.S. Dist. LEXIS 10724 (D.N.J. Jan. 27,
2012) (dismissing, among other claims, the plaintiff’s FDCPA claim because the complaint did
not adequately put the defendants “on notice of any specific claims linked to specific acts that it.
committed” during the course of its interactions with the plaintiff, and therefore the complaint
failed “to satisfy the Rule 8(a) pleading requirements as set forth in Twombly and Igbal”).
Similarly, here, Plaintiff merely recites the elements of the FDCPA and claims that
Defendant’s alleged conduct violated the statute. Even assuming that Defendant is in fact
subject to the FDCPA, Plaintiff does not indicate, among other things, how Defendant’s actions
are violative of the statute. As such, Plaintiff’s bare-bones allegations are insufficient as a matter
of law to survive Defendant’s motion for dismissal.

Guirguis v, Movers Specialty Servs.,

346 Fed, Appx. 774, 776 (3d Cir. 2009) (explaining that “[ajlthough a Plaintiff may use legal
conclusions to provide the structure for the complaint, the pleading’s factual content must
independently ‘permit the court to infer more than the mere possibility of misconduct”)
(citations omitted).
2

2

Recent cases from other districts are also instmctive on the matter. In a similar case, the United
States District Court for the Eastern District of California granted a defendant’s l2(b)(6) motion
where the plaintiffs complaint alleged that the debt collector falsely threatened to garnish her
4

V.

CONCLUSION
Based on the reasons set forth above, Defendant’s motion to dismiss
Plaintiffs

Complaint is granted without prejudice and this matter is administratively termin
ated. To the
extent the deficiencies in Plaintiffs claim can be cured by way of amend
ment, Plaintiff is
granted fourteen (14) days to reinstate this matter and file an Amended Compl
aint solely for
purposes of amending such claims. To the extent Plaintiff seeks to add any
additional claims, a
formal motion to amend should be filed in accordance with all applicable local
and Federal rules,
as well as any scheduling order which may be in place.
An appropriate Order accompanies this Opinion.

DATED: May 28, 2013
7

/

CLAIRE C. CECCHI, U.S.D.J.

wages. Lopez v. Rash Curtis & Associates, No. 10l 173, 2010 WL 350507
9, at l (E.D. Cal.
Sept. 3, 2010). The Court held that the complaint lacked any factual allegations
regarding the
threats, including the illegality of the wage garnishment. . at 3. In anothe
r similar case, the
same court held that the factual allegations for an alleged FDCPA violation require
at a
minimum “to identify (1) the ‘call number,’ (2) the number of calls made to
demonstrate
repeated. constant and/or continuous calls, (3) when the calls were made and
over what period of
time (4) the content of the conversations if any (5) the alleged debt and (6)
the link between
the caller and the Defendant debt collector” Johnson v. Nat’l Recovery Group
, LLC, No. 102205,2010 WL 1992636 at*3(ED Cal May14 2010)
5